Koci v Secretary of State for the Home Department

On an appeal from an adjudicator, the IAT may reconsider errors of fact, including documentary country evidence, but it is not a tribunal of first instance. It must give due weight to the adjudicator’s findings and may interfere only where the finding is plainly wrong or unsustainable. A general assessment of state protection cannot replace an examination of the claimant’s individual circumstances. In a blood-feud case, relevant circumstances may include the notoriety of the original killings, time elapsed, the claimant’s conduct and the number killed on each side. Failure to seek state protection is relevant only where sufficient protection is available; otherwise it is irrelevant. The appeal was allowed because the IAT misread the country material and failed to assess the appellant’s particular risk.

An Albanian national claimed asylum and human-rights protection after his father killed two members of a rival family and was then killed himself. The appellant was later shot at while hiding in Tirana. The adjudicator accepted his account and allowed the asylum and human-rights appeals, finding risks engaging Articles 2 and 3. The asylum conclusion was accepted to be legally wrong and was no longer in issue. The IAT allowed the Secretary of State’s appeal on the human-rights claim, relying on updated country material about blood feuds and state protection. The appellant appealed to the Court of Appeal. The central questions were whether the IAT had applied the proper standard when reviewing the adjudicator’s factual findings and whether it had assessed the appellant’s individual circumstances.

Appeal allowed unanimously. The IAT’s decision on the human-rights claim was set aside and the adjudicator’s determination was restored. The asylum issue was no longer live.

1. The Immigration and Asylum Act 1999 permits an appeal to the IAT for an error of fact as well as an error of law. The IAT must nevertheless give due weight to the adjudicator and must not act as a first-instance tribunal. That restraint applies even when the finding rests on documentary country evidence. The IAT may interfere only if the finding is plainly wrong or unsustainable, not merely because it would draw a different inference. That approach was supported by Oleed [2002] EWCA Civ 1906 and the other authorities referred to in the judgment.
2. The principle in Skenderaj [2002] EWCA Civ 567 concerning a claimant’s failure to seek state protection had to be applied with realism. Failure to seek protection is irrelevant where the state cannot or will not provide sufficient protection. Where sufficient protection is available, unwillingness to seek it is relevant only if it flows from a well-founded fear of persecution.
3. The IAT misread the October 2002 country report. Its conclusion that the authorities were taking effective steps to control blood feuds was not rationally supported by the report as a whole. The report recorded continuing killings, threatening proportions, the absence of a coordinated strategy and a growing phenomenon. The IAT also mistakenly treated the figure of more than 14 deaths as an exact figure. The report did not conflict with the expert evidence or justify rejecting the adjudicator’s findings.
4. The IAT failed to apply its general assessment to the appellant’s particular circumstances. The killings were recent and public; the appellant’s father had been killed after emerging from hiding; and the appellant had himself been shot at in Tirana. Sufficiency of protection had to be assessed on the individual facts. Relevant factors included the notoriety or publicity of the original killing, time elapsed, the applicant’s conduct and the number killed on each side. The judgment did not establish that every person connected with an Albanian blood feud would automatically engage Articles 2 or 3.

The Secretary of State was ordered to pay the appellant’s costs, subject to detailed assessment of the Community Legal Services Funding certificate.

1. Court of Appeal (Civil Division) — On 22 October 2003, the appeal was allowed. The IAT’s decision was set aside in respect of the human-rights claim and the adjudicator’s determination was restored: [2003] EWCA Civ 1507.
2. Immigration Appeal Tribunal — Allowed the Secretary of State’s appeal against the adjudicator’s human-rights decision, relying on updated country material and concluding that effective protection was available in Albania.
3. Adjudicator — Accepted the appellant’s account and allowed the asylum and human-rights appeals. The asylum conclusion was later accepted to be wrong in law and was not a live issue before the Court of Appeal.